ANTHONY PAYNE, individually and
in his official capacity as Officer of
the Charlotte Mecklenburg Police
Department, and the CITY OF
CHARLOTTE,

Defendants,

Plaintiff, complaining of Defendants, alleges and says as follows:

PARTIES, JURISDICTION AND VENUE

1. Plaintiff Audrey Lowder (hereinafter "Plaintiff") is an adult citizen and resident of Stanly County, North Carolina. At all times pertinent herein, Plaintiff was the sister of the decedent, Anthony Wayne Furr (hereinafter "Decedent Furr") and she is now the duly qualified administratrix of Wayne's estate.

2. The decedent, Anthony Wayne Furr ("Decedent Furr"), was a citizen and resident of Stanly County, North Carolina, at the time of his death.

3. Upon information and belief, Defendant Anthony Payne (hereinafter "Officer Payne") is an adult citizen and resident of Mecklenburg County, North Carolina. At all times pertinent to the allegations alleged in this Complaint, Payne was a police officer with the Charlotte-Mecklenburg Police Department and an agent and employee of the Defendant City of Charlotte in the course and scope of his agency and employment. Upon information and belief, at all times pertinent to this action, Payne was employed by the City of Charlotte as a police officer, and was acting at all relevant times as an agent of the City of Charlotte, and under the color of statutes, regulations, customs, practices and usage of the City of Charlotte and State of North Carolina.

4. Upon information and belief, Defendant City of Charlotte (the "City") is a municipal corporation in Mecklenburg County, North Carolina, duly chartered under the laws of the State of North Carolina. Upon Information and belief the City has purchased insurance, either by contract with an insurance company or by participation in an insurance risk pool, that covers the claims raised in this action, and has thereby waived any defense of sovereign or governmental immunity.

5. The Superior Court of Mecklenburg County, North Carolina has jurisdiction over the parties and subject matter of this action.

6. Venue is proper in Mecklenburg County because this is where the cause of action alleged in this Complaint arose.

7. This is an action to recover money damages resulting from the negligence and gross negligence of Defendants, and the assault, batter, and wrongful death of Anthony Furr, whose death occurred on July 20, 2006 in Mecklenburg County, North Carolina.

8. The amount in controversy exceeds $10,000.00.

FACTUAL ALLEGATIONS

9. On July 20, 2006, and at all pertinent times alleged in this Complaint, the City had issued Officer Payne a firearm for use in his job as a patrol officer. Officer Payne's possession and use of the firearm was with the actual knowledge, consent and permission of the City.

10. On July 20, 2006, and at all pertinent times alleged in this Complaint, the City had issued Officer Payne a firearm for use in his job as a patrol officer. Officer Payne's possession and use of the firearm was with the actual knowledge, consent and permission of the City.

11. On July 20, 2006 Wayne was employed by A.F.L. Network Services, LLC ("AFL") as a cellular telephone tower engineer. As part of Decedent Furr's job duties, he routinely services cellular towers for AFL, oftentimes in the early morning hours between 11:00 p.m. and 6:00 a.m., when cellular telephone traffic was low.

12. On July 20, 2006, AFL requested that Wayne conduct a routine maintenance check at a cellular telephone tower located at 8810 East W.T. Harris Blvd., in Mecklenburg County, North Carolina (the "Tower"), an area within the police jurisdiction of the City of Charlotte.

13. At or around 1:00 a.m., Decedent Furr arrived at the Tower in a white company pickup truck provided by AFL. He was dressed in AFL's company uniform. He backed the truck into the narrow driveway of the Tower, so that AFL's company logo marked on the side of the truck was easily visible to persons approaching the entrance to the Tower. He then proceeded to the Tower's equipment shelter to begin performing the required maintenance.

14. Shortly thereafter, bartender Adam Clay Hodge called 911 and reported that a "suspicious vehicle" had been parked behind the bar that he operated; that he had told the individuals operating the vehicle to leave the area; that the individuals had not left area, and he thought they might be dumping trash.

15. About 1:30 a.m., three (3) Charlotte-Mecklenburg police offers responded to the report by going to the Tower: Patrol officers Adam Benson ("Benson"), Anthony Payne, and Steven Branan ("Branan"). Upon arriving at the tower, Benson began investigating the truck, while Payne and Branan began searching the area round the Tower. None of the officers announced their presence.

16. At this time, Decedent Furr was performing maintenance inside the Tower's equipment shelter. The equipment shelter's interior lights were turned on, and the door was open to the outside. The air conditioning/cooling units for the equipment station were operating at the time. They produce a large amount of noise, which is amplified by the shelter's confined space, thereby making it very difficult to hear other sounds.

17. Upon information and belief, as Officer Payne and Branan approached the open door to the equipment shelter, and after they had drawn their firearms, Officer Payne observed Decedent Furr in a crouched position; approximately 10 to 12 feet away from the doorway, working either on a laptop computer or with a tool in his hands.

18. Upon information and belief, Officer Payne aimed his firearm at Decedent Furr and remained outside in the darkness and attempted to verbally identify himself.

19. Upon information and belief, Decedent Furr did not hear Officer Payne's voice or heard only a muffled noise and was startled and frightened as he was unable to hear what was said due to the loud noise from the air conditioners and was unable to see in the direction of the noise or voice because the offers were outside in the darkness wearing dark uniforms.

20. Upon information and belief, Decedent Wayne could not see Officer Payne or Branan because the cell-tower equipment room was very brightly lit while the exterior of the cell-tower, where Payne stopped, was completely dark.

21. Upon information and belief, Officer Payne could see the Decedent Furr appeared confused and unable to see or identify Officer Payne as a police officer.

22. Upon information and belief, at the time of the noise coming from the darkened exterior of the equipment room, Decedent Furr may have had in his hands a tool or wrench.

23. Upon information and belief, Officer Payne ducked behind the wall of the open door, reached around the doorframe with his right hand and blindly fired 3 rounds at Decedent Furr. One round struck the door outside of which Officer Payne was standing and two of the rounds hit Decedent Wayne in the chest area, thereby causing significant bodily injuries. Wayne died almost immediately from his injuries.

24. In the alternative and upon information and belief, amidst the confusion of the sudden confrontation, the noise and vision impairment, Decedent Furr may have finally comprehended that the person(s) approaching him in the middle of the night at his work site were not assailants but were police officers and, in response, Decedent Furr may have retrieved a revolver he carrier for self-protection and thrown it outside the equipment room through the open doorway, causing it to land outwide where Officer Payne was standing.

25. In the alternative and upon information and belief, after Decedent Furr has thrown his revolver out of the doorway completely disarming himself, Officer Payne ducked behind the wall of the open door, reached around the doorframe with his right hand and blindly fired 3 rounds at Decedent Furr. Two of the rounds hit Wayne in the chest area, thereby causing significant and fatal bodily injuries. Decedent Furr died almost immediately from his injuries.

26. Upon information and belief, Decedent Furr never pointed a wrench, tool or handgun at Officer Payne or Branan.

27. In the alternative and upon information and belief, after Decedent Furr had thrown down his handgun and disarmed before Officer Payne shot him. At the time of the shooting, Decedent Furr had thrown his handgun out the door to the ground outside. Officer Payne shot and killed Decedent Furr knowing that Decedent Furr had disarmed, reckless and heedless of the fact that his target had disarmed and no longer posed a threat.

28. At the time Officer Payne discharged his weapon, he was acting within the course and scope of his employment with the City and the CMPD.

29. Upon information and belief, the City and the CMPD have purchased liability insurance for their negligence, and participate in a risk pool, and therefore have waived the right to raise the Doctrine of Sovereign Immunity as a defense, pursuant to N.C.G.S. 160A-485.

FIRST CAUSE OF ACTION
[Negligence / Gross Negligence]

30. The preceding paragraphs are realleged and incorporated herein as if fully set forth.

31. Officer Payne, individually and in his official capacity as a patrol officer for the city, was negligent at the time and place alleged hereinabove, in at least the following particulars:

a. He failed to properly identify himself to Decedent Furr, and confirm that Decedent Furr heard or otherwise understood the identification;

b. he negligently failed to investigate or confirm that Decedent Furr was employed by AFL and was lawfully at the Tower to perform legitimate work in the scope of his employment, before approaching Decedent Furr by surprise, lat at night and with his firearm drawn;

c. He negligently approached Decedent Furr, using stealth and surprise, late at night and with his firearm drawn, and while knowing, actually or constructively, that Decedent Furr would be startled, frightened and might instinctively react in self-defense, and failed to give Wayne an opportunity to comprehend the situation before using excessive force;

d. He negligently failed to realize that, because of dime or non-functioning outdoor lighting and the loud noise from the air conditioner, Decedent Furr would be startled, frightened and unable to see or hear Officer Payne's approach and commands;

e. He failed to give decedent Furr an opportunity to comprehend the situation and comply with commands to disarm before using excessive force or, in the alternative, failed to see and ascertain that Decedent Furr was in the process of disarming or had, in fact, already disarmed, before Officer Payne discharged his firearm around the corner of the doorway;

f. He discharged his firearm from a "blind" position, around the corner of the doorway, where he could not confirm whether or not Decedent Furr had disarmed;

g. He failed to use less combative, provocative and aggressive methods of alerting Decedent Furr as to the presence of the three officers, before using deadly force against him;

h. He failed to use his firearm as a reasonable, careful and prudent officer would have used it under the same or similar circumstances.

i. He used deadly force against Decedent Furr when he knew, or reasonably should have known, that the use of deadly force was not necessary;

j. He negligently used excessive force against Decedent Furr, when such force was not justified under the circumstances.

32. The negligent acts and omissions of Officer Payne, as described hereinabove, were the sole and proximate cause of the shooting.

33. The acts and omissions of Officer Payne, as described hereinabove, were willful, wanton and/or reckless, and amount to gross negligence.

34. Officer Payne acted with conscious and intentional disregard and indifference to the rights and safety of others, including Decedent Furr.

35. Officer Payne was aware of the probably consequences of his conduct in recklessly discharging his firearm as described above, due to the likelihood that his conduct was reasonably likely to result in injury or death to others, including Decedent Furr.

36. The negligence of Officer Payne is imputed by law to the City by reason of Officer Payne's agency relationship with, and employment by, the City at the time and place that the incident occurred, under the Doctrine of Respondeat Superior .

37. Plaintiff is entitled to recover from defendants, jointly and severally, an amount in excess of $10,000 as a result of Defendants' negligence, gross negligence, and/or willful and wanton negligence.

SECOND CAUSE OF ACTION
[Assault and Battery]

38. The preceding paragraphs are realleged and incorporated herein as if fully set forth.

39. Officer Payne, individually and in his official capacity as a patrol officer for the City, pointed a firearm at Decedent Furr and, unjustifiably, used deadly force against Decedent Furr, which force was excessive under the circumstances.

41. Decedent Furr's apprehension was objectively reasonable under the circumstances in that a person or ordinary care and prudence under the same or similar circumstances would have believed that harmful or offensive contact was about to occur.

45. The Defendants are jointly and severally liable for maliciously assaulting and battering Decedent Furr, in an amount to be determined by a jury, but believed to be in excess of $10,000.

THIRD CAUSE OF ACTION
[Acts of Malice and Acts Beyond Scope of Duties]

46. The preceding paragraphs are realleged and incorporated herein as if fully set forth.

47. The acts and omissions of Officer Payne described hereinabove were committed with such reckless and wanton disregard for the life and safety of Decedent Furr that they were malicious and beyond the scope of his official duties as a patrol officer.

48. Specifically, Officer Payne's covert approach, inadequate identification/warning, failure to consider the noise and darkness as factors inhibiting Decedent Furr's ability to ascertain the identity of individuals approaching from the darkened exterior of the Tower, and near-immediate resort to deadly force from a blind position, without first confirming whether Decedent Furr had complied with Officer Payne's request to disarm, were committed with malice.

49. The negligence of Officer Payne is imputed by law to the City by reason of Officer Payne's agency relationship with, and employment by, the City at the time and place that the incident occurred, under the Doctrine of Respondeat Superior .

50. Plaintiff is entitled to recover from defendants' acts of malice and acts beyond scope of duties.

FOURTH CAUSE OF ACTION
[Negligent Hiring/Training/Supervision]

51. The preceding paragraphs are realleged and incorporated herein as if fully set forth.

52. The City was negligent in at least the following respects:

a. It failed to establish reasonable procedures to train officers to properly respond to reports of suspicious activity;

b. it failed to advise patrol officers of the legitimate late night employment activities of cellular telephone tower engineers and the need for use of restraint when encountering or investigating such persons at jobsites in the early morning hours;

c. It failed to establish reasonable procedures to train patrol officers to refrain from using deadly force in circumstances where officers are required to investigate the legitimate late-night employment activities of cellular telephone tower engineers.

d. It failed to take reasonable steps to serve and protect citizens and workers engaged in legitimate late-night employment activities;

e. It negligently hired Officer Payne;

f. It failed to properly train Officer Payne:

g. Through the acts of its agent and employee, Officer Payne, it failed to accomplish the mission of its Police Department of protecting and serving the law-abiding public, including Decedent Furr.

53. As a proximate result of the City's negligent hiring of Officer Payne and its negligent supervision of patrol officers, including Officer Payne, Plaintiff has been damaged in an amount to be determined by a jury, but believed to be in excess of $10,000.

FIFTH CAUSE OF ACTION
[Wrongful Death of Anthony Wayne Furr]

54. The preceding paragraphs are realleged and incorporated herein as if fully set forth.

55. The acts and omissions of Officer Payne, as described hereinabove, were the sole and proximate cause of the injuries sustained by Decedent Furr that led to his wrongful death.

56. The City is liable for the acts and omissions of Officer Payne under the Doctrine of Respondeat Superior, and under the Doctrine of Agency, Express or Implied .

57. The negligence and omissions of Defendants, their agents and/or representatives was the direct and proximate cause of Decent Furr's death.

58. All Defendants are jointly and severally liable to Plaintiff for the wrongful death of Decedent Furr.

59. As a direct and proximate result of Decedent Furr's wrongful death, this heirs at law have been deprived of the net economic value of his earning for the remainder of his life expectancy, as well as his protection, care, assistance, society, companionship, comfort, guidance, effects, offices and services. Plaintiff is entitled to recover in excess of $10,000 in damages from Defendants, pursuant to N.C.G.S. 28A-18-2.

SIXTH CAUSE OF ACTION
[Punitive Damages]

60. The preceding paragraphs are realleged and incorporated herein as if fully set forth.

62. Pursuant to N.C.G.S. 1D, Plaintiff is entitled to recover punitive damages from Defendants, jointly and severally, in an amount to be determined by jury, for not less than $10,000.

PRAYER FOR RELIEF

WHEREFOR, Plaintiff prays for the following relief:
1. That Plaintiff have and recover of Defendants, jointly and severally, an amount exceeding $10,000 under the First Cause Section;
2. That Plaintiff have and recover of Defendants, jointly and severally, an amount exceeding $10,000 under the Second Cause Section;
3. That Plaintiff have and recover of Defendants, jointly and severally, an amount exceeding $10,000 under the Fifth Cause Section;
4. That Plaintiff have and recover of Defendants, jointly and severally, an amount exceeding $10,000 under the Sixth Cause Section;
5. That Plaintiff have a trial by jury on all issues so triable;
6. That Plaintiff recover from Defendants the costs of this action and her reasonable attorney's fees to the fullest extent allowed by North Carolina law; and
7. That Plaintiff be granted all other relief both legal and equitable which the Court deems just and proper.